Barack Obama, Constitutional Law, D.C. Circuit, David Sentelle, Federal Government, Labor / Employment, Politics

D.C. Circuit Strikes Down Some Of Obama’s Recess Appointments

Court sends Obama back to the drawing board.

It’s been so long since Obama lost something I was beginning to forget what it looked like.

In a reminder that just because the Senate is a dysfunctional band of elderly people doesn’t mean you can put them in a home and wait for them to die, the U.S. Court of Appeals for the D.C. Circuit knocked down some of the president’s recess appointments.

In January 2012, Obama made some recess appointments to the National Labor Relations Board when the Senate wasn’t really in recess. The D.C. Circuit today says that he can’t do that.

Which might, you know, throw out a year’s worth of NLRB work. And it might be bad precedent for the big recess appointment of Richard Cordray to head the Consumer Financial Protection Bureau…

Here’s the deal. Senate Republicans have decided that the way to prevent regulations they don’t like is to simply refuse to confirm any nominees to any agency they don’t like. They’ve done it with the Bureau of Alcohol, Tobacco and Firearms. They’ve done it with the National Labor Relations Board. And they’ve done it with the Consumer Financial Protection Bureau. “We don’t like these agencies so we’re going to starve them of people and resources.” It’s a classic Republican play.

Obama decided to get around the Senate minority by usurping the Senate’s authority to confirm nominees through the recess appointment process. The Senate responded by not officially going into recess, and instead gaveled in “sham” sessions over the holidays. Obama decided that these sessions didn’t count as “real” sessions and made the appointments anyway, in a pretty naked executive power grab. It’s a classic Democrat play.

The decision of the D.C. Circuit shouldn’t really surprise anybody. In my opinion, courts are not really equipped to deal with one party acting in bad faith; they’re much better at dealing with one branch of government making an unconstitutional power grab over another. From the Associated Press:

The three-judge panel, all appointed by Republican presidents, ruled that during one of those pro forma sessions on Jan. 3, the Senate officially convened its second session of the 112th Congress, as required by the Constitution.

“Either the Senate is in session, or it is in recess,” Chief Judge David Sentelle wrote in the 46-page ruling. “If it has broken for three days within an ongoing session, it is not in “the Recess” described in the Constitution.”

Simply taking a break of an evening or a weekend during a regular working session cannot count, he said. Sentelle said that otherwise “the president could make appointments any time the Senate so much as broke for lunch.”

That’s fair. It kind of totally ignores the fact that Senate Republicans have adopted an obstructionist policy regarding presidential appointments that goes well beyond their constitutional power to advise and consent, but two wrongs don’t make a constitutional right.

The way to handle obstructionist senators isn’t by empowering the executive beyond constitutional limits. It’s for non-obstructionist senators to work within the rules to find solutions that allow the body to move forward on the people’s business despite the bad faith of a vocal minority.

That’s why the Senate majority leader Harry Reid’s commitment to filibuster reform is so important. It’s the appropriate way for a strong leader to…

What? You can’t be serious. Sorry, I’m being told that Harry Reid folded like a lawn chair when it came time to actually reform something. What a joke. This is why evil will always triumph, because good is dumb.

Anyway, yeah, the courts pulled back on executive power today. That’s not really a bad thing. It just means that obstructionism works if good people don’t demand better from their elected officials. We’ll see if Obama wants to fight this battle one level higher.

UPDATE (7:00 PM): If the ruling on recess appointments stands, it could have far-reaching implications, as noted by the New York Times:

The ruling also called into question nearly 200 years of previous such appointments by administrations across the political spectrum. The executive branch has been making intrasession appointments since 1867 and has been using recess appointments to fill vacancies that opened before a recess since 1823. Among other things, [former Bush administration lawyer John P.] Elwood noted, it called into question every ruling made by several federal appeals court judges who were installed by recess power.

“You know there are people sitting in prisons around the country who will become very excited when they learn of this ruling,” he said.

There’s additional analysis from Elwood over at the Volokh Conspiracy.

Appeals court panel rules Obama recess appointments to labor board are unconstitutional [Associated Press]
D.C. Circuit Declares NLRB Recess Appointments Unconstitutional [The BLT: The Blog of Legal Times]

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